Letter of the day: Tread cautiously on St Hilda's matter
THE EDITOR, Sir:
The rescinding of the appointment of the head girl of St Hilda's High School based on her alleged faith, has given rise to questions of constitutional rights. The public defender has pronounced that this action was a breach of those rights and both she and the former acting public defender have called for legislation to prohibit discrimination in more specific terms than the Constitution provides.
We need to tread cautiously. The enactment of legislation to give greater and more specific application to the fundamental rights provisions of the Constitution is fraught with real danger. Section 13 of the Constitution guarantees freedom from discrimination on the grounds of, among other things, religion, gender or place of origin. Freedom of religion must also mean freedom from religion.
In the instant case of St Hilda's and based on the facts that have been made known, the removal of the head girl may well have been unjustified. But what if the issue was not that the person involved was alleged to be a Jehovah's Witness but had declared herself to be an atheist? St Hilda's would have been faced with the dilemma of having a head girl as a leader and role model whose beliefs are not just different from but antithetical to the principles of the diocese under which the school operates. What if she had declared herself to be a Muslim committed to Sharia Law, some of the tenets of which are in conflict not only with the diocesan faith but also with the Jamaican Constitution itself?
Lodges, for example, do not admit women to membership or men who do not profess a belief in a supreme being. The Chinese and Jewish communities in Jamaica operate cemeteries for the interment of persons of that ethnicity and faith respectively. I know of at least one parish homecoming foundation that awards scholarships restricted to students residing in that parish. Are these acts of discrimination violating Section 13 that legislation must now be crafted to prohibit?
The Constitution, quite purposefully, provides that the fundamental rights provisions may be abrogated, abridged or infringed by acts of Parliament only where it is, "demonstrably justified in a free and democratic society". Before we rush to enact anti-discrimination laws, we need a fulsome discussion on the practical application of those rights and the extent to which not only laws but individual or collective actions that appear to be discriminatory may be "justified in a free and democratic society". Such a discussion may well lead to the conclusion that the determination is best left to the court which is able to draw on the vast body of common law practices rather than restricting it to what the legislature decided or is discerned to have intended.